Transgender student’s bathroom case comes to the Supreme Court on the emergency docket

South Carolina asked the Supreme Court to pause an order by a federal appeals court that requires a public school in the state to allow a transgender boy to use the boys’ bathroom while he challenges a state law that requires students to use bathrooms based on their biological sex at birth. Describing the school district as “now stuck between an impossible rock and hard place,” the state cited the Supreme Court’s recent decision in United States v. Skrmetti, in which six justices upheld Tennessee’s ban on certain forms of medical treatments for transgender minors, as the basis to put the ruling by the U.S. Court of Appeals for the 4th Circuit on hold for now.

The state’s request, which was distributed to reporters on Thursday, is an early test of the broader impact of the court’s 6-3 decision in Skrmetti. Although South Carolina’s application came to the justices on the court’s emergency docket, one of the factors that the justices consider when deciding whether to grant temporary relief is the likelihood that the litigant seeking the stay will ultimately prevail on the merits of the dispute.

The student, known in the litigation only as John Doe, filed the lawsuit last year. Doe alleged that the bathroom law violates the Constitution’s equal protection clause, which generally prohibits the government from treating people in a similar situation differently, as well as Title IX of the Civil Rights Act of 1964, a federal civil rights law that bars sex-based discrimination in educational programs that receive federal financial assistance.

A federal district court in South Carolina put the case on hold after the Supreme Court agreed to take up West Virginia v. B.P.J., in which the 4th Circuit had struck down a state law banning participation by transgender girls on girls’ sports teams.

But on Aug. 12, the 4th Circuit ordered the school district to allow Doe to use the boys’ bathroom while litigation continues. The court of appeals relied on its own 2020 decision in Grimm v. Gloucester County School Board, in which it held that a Virginia school’s refusal to allow a transgender boy to use the boys’ restroom violated the equal protection clause and Title IX because it discriminated “on the basis of sex.”

Calling the ruling in Grimm a “discredited outlier,” South Carolina came to the Supreme Court on Thursday, asking the justices to intervene. Skrmetti, South Carolina Deputy Solicitor General Joseph Spate argued, “is irreconcilable with Grimm.” The Supreme Court in Skrmetti applied a less stringent standard of review (rational basis review) than in Grimm, Spate stressed, and it “rejected Grimm‘s view of discrimination ‘on the basis of sex.'”  

Moreover, Spate contended, unless the Supreme Court steps in, “the State, the school district, and its students are suffering actual, ongoing, material harms.” By contrast, he wrote, if the 4th Circuit’s order were blocked, Doe would have “access to multi-occupancy girls’ restrooms at school,” as well as “the accommodation of a single-stall restroom.”